Critics of the Obama administration's decision to bypass Congress before taking military action in Libya, Friday is judgment day.
May 20 is the 60-day deadline for President Barack Obama to get congressional authorization under the War Powers Act, prompting outrage among a bipartisan group of lawmakers who believe that the president is breaking the law. Sen. Rand Paul (R-Ky.) and five of his GOP colleagues sent a letter to Obama, demanding an answer.
"There is a law. It's on the books, and in plain reading of the War Powers Act, he appears to be in violation of the War Powers Act," Paul told CNN.
"To me it's the most important debate we'll ever have up here," Paul added. "If we're going to send someone, your son or my son to war, its important that it be done properly. And it's important that, if there are constitutional restraints, we obey them."
Rep. Brad Sherman (D-Calif.) was just as emphatic, telling The Huffington Post, "[t]he War Powers Act is the law of the land, and it is clear. You must withdraw forces from hostilities after 60 days absent authorization from Congress. President Obama should seek authorization for the Libya operations and Congress should debate and vote. Our efforts to bring democracy to Libya should not undermine democracy and the rule of law in the United States.”
And Rep. Dennis Kucinich (D-Ohio) says he plans to introduce legislation next week to halt the mission. In a statement, Kucinich decried that the administration is "setting the stage for endless war which will bring ruin and poverty."
Though previous presidents have ignored provisions of the act requiring congressional approval before military action, it is unprecedented for the commander-in-chief to blow the 60-day deadline, say presidential scholars.
Congressional leaders, for their part, said very little about the deadline being missed. That might indicate they are willing to let the White House ignore a law that has been derided by some as unconstitutional.
Presidents have flouted the law before: President Ronald Reagan did it when he sent troops into Lebanon, and President Bill Clinton did it when he ordered airstrikes in the Balkans.
If Obama manages to ignore it, legal scholars say the precedent could help undo a law that was intended to take back Congress’s control over U.S. warmaking.
“The fundamental point is: Before we engage in a serious military endeavor, both branches should give their consent,” said Bruce Ackerman, a Yale University law professor. If Obama ignores the law, he said, “we go back to the status quo before 1973. I mean, Richard Nixon will have won.”
The War Powers Resolution was an attempt to settle a dispute as old as the Constitution. That document says that only Congress has the power to declare war but that the president is commander in chief of the military.
Repeatedly, presidents construed that to mean they could send U.S. forces into combat without congressional permission. In many cases, the reasoning was that the fights would be too small, or too short, to be considered a “war.”
In 1973, Congress tried to take its power back. It said presidents must get explicit permission within 60 days — and withdraw forces if permission isn’t given.
But almost since the law was written, presidents have been trying to ignore it. Many have argued that it is unconstitutional, usurping presidential powers to command.
U.S. involvement in the Libya operation is estimated to have cost taxpayers at least $750 million so far, according to the Pentagon. U.S. drones and military aircraft, including refueling tankers and surveillance planes, remain actively involved in enforcing a no-fly zone above Libya.
White House press secretary Jay Carney has said that the administration plans to continue "consultations" with Congress on Libya but would not comment when asked recently about the passing of the 60-day deadline.
But Deputy Secretary of State James Steinberg told a Senate panel last week that Obama remains "mindful" of the War Powers Resolution and seeks to abide by it.
"He will continue to do so, and we look forward to continuing to consult with Congress on our role in the coming days," he said.
With the House of Representatives on recess and Obama headed to Europe next week, many observers don't see a speedy resolution to the issue and expressed disappointment at the impasse.
"They're making a mistake on the War Powers Act," said Brookings Institution foreign policy fellow Michael O'Hanlon. "Congress does deserve a role in this and making the case to Congress for continued military action in Libya shouldn't be hard."
Tom Donnelly, director of Center for Defense Studies at the right-leaning American Enterprise Institute, speculated that Obama has tried to avoid the issue of extending operations in Libya given public sentiment on the conflict.
"There's been rising domestic and political discontent about it," he said. "Maybe he [Obama] can get away with it because of the Osama bin Laden killing. But it's difficult to say in the games of chicken between the White House, Capitol Hill and all over town."
Obama has sought to take a backseat in the Libyan intervention, stressing the U.S. holds a support role as part of an international coalition led by NATO.
"We cannot prevent every injustice perpetrated by a regime against its people, and we have learned from our experience in Iraq just how costly and difficult it is to impose regime change by force -- no matter how well-intended it may be," Obama said Thursday in a speech on Middle East policy.
"But in Libya, we saw the prospect of imminent massacre, had a mandate for action, and heard the Libyan people's call for help. Had we not acted along with our NATO allies and regional coalition partners, thousands would have been killed."
Still, nearly four years ago, it was then-candidate Obama who suggested an end didn't justify the use of any means.
"No more ignoring the law when it's inconvenient. That is not who we are," Obama said, referring to his predecessor President George W. Bush. "We will again set an example for the world that the law is not subject to the whims of stubborn rulers.
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